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	England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> L (A Child), Re (Care Threshold Criteria) [2006] EWCC 2 (Fam) (26 October 2006) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2006/2.html Cite as: [2007] 1 FLR 2050, [2006] EWCC 2 (Fam), [2007] Fam Law 297

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IN THE COUNTY COURT
AT BRISTOL

		Claim No.TA0SC00057. The Guildhall, Small Street, Bristol.
		26th October 2006.

1. MR. JUSTICE HEDLEY: This case concerns the future of two children, the older, whom I shall call "AL", was born on the [a date in] 1995 and so she will shortly be eleven, and the younger, "ML", was born on [a date in] 1999, so he is seven and a half.
2. I am giving this judgment in public but it must be understood and remembered that nothing may be referred to, reported or transmitted to any other person which might lead to the identification of the children or their home or school addresses.
3. I am giving judgment in public because it seems to me that this case raises real difficulties in those not altogether uncommon circumstances where parents have learning disabilities, that they are in many ways inadequate but not malicious and where children are adversely affected by the experiences that flow from it.
4. The parents were the subject of a psychological report from a distinguished consultant psychologist, Mrs. W and she provides a useful key to some of the features of the parents that are material to the problems that have arisen in this case.
5. The mother is a lady in her mid thirties. Mrs. W administered to her the conventional psychometric testing in terms of IQ and her conclusions are expressed as follows:

"The mother's scores are uniformly in the first percentile with some small variations. Her memory, which an earlier psychologist remarked on in her report, is exceedingly poor. She has difficulty remembering anything without visual aids and reminders. She understands her world in a rigid and literal manner. She is present in the here and now, remembering little from the past and with little sense of the future. She is an unreliable witness to her own life because she has such a poor short and long-term memory. Her adaptive functioning is also extremely poor."

The psychologist then goes on to explain some of the tests and concludes:

"On all these scales the mother was at or below the first percentile. She requires assistance to perform all her household or nurturing tasks. She is dependent on support from her husband and three different care workers who assist her during the week. Her greatest skills are practical and her weakest verbal."

6. The mother's level of functioning is such that she required a litigation friend and the Official Solicitor has acted on her behalf and the evidence that she wishes to be put before the court has been put in the report of the Official Solicitor and in some further observations by Miss Trumper, counsel on her behalf.
7. The father is a little older, in his late thirties, and Mrs. W says about him, after describing the various tests that she used in terms of cognitive ability:

"Thus he has partial not global learning difficulties which interfere with his ability to function in every day life. In recognition of the problems he has, he is given support through the Somerset Partnership which is focused on helping him deal with the mail and resolving disputes with the neighbours. He cannot read any of the papers in this matter and he cannot understand them unless they're explained to him. As he has poor memory he is unlikely to remember the issues with any clarity. It appears likely that he has some kind of temporal lobe abnormality which affects his cognitive ability and behaviour."

He too has not been able to give evidence in this case, although he did not require a litigation friend. He has, however, put in a statement and, of course, the court has been addressed by Mr. Hickmart on his behalf.

8. It may be worth, at this stage, adding in some observations Mrs. W made about familial contact and she says this at Section 16 of her report of the 2nd February 2006:

"I observed father and mother at two contacts. Their behaviour was similar at both. Mother was hardly engaged in either although she made attempts during the contacts to talk to either child and offer them food and cuddles. The father was absorbed by the children. He did little to control their behaviour and did not make any correcting comments when it would have been appropriate, for example, when 'M' climbed on tables, hit him or used swear words at 'A'. Father spent most of his time in physical contact with one or other child and favoured 'A' over 'M'. 'M' attended the first session alone and was clearly delighted to see his father and spent almost the entire session either sitting on his lap or standing next to him. The activities pursued included watching the television, some drawing, but mostly chatting. Once or twice the mother attempted to engage M and he crossed to her side of the room for a cuddle. I was struck by the lack of interest in 'M's life, as there was no discussion of school or what he was doing day-by-day or achieving."

9. Although those are highly selective quotations, they do in fact provide a backdrop which explains the difficulties which this family inevitably face in the ordinary conduct of life. For completeness I should add that 'A' has a learning disability but 'M' does not and he is of distinctly average intelligence which puts him in a quite different category to the rest of the family.
10. The parents met in about 1989 and married in August 1995 when, of course, the mother was pregnant with 'A'. They had lived in D, they had experienced problems with the neighbours and in due course, perhaps some time in 2002, they arrived in B. It is clear from the evidence that that part of B in which they live is an area of significant social deprivation, as will be readily apparent from the evidence that came from the school, to which I will refer in due course. Since the arrival in B there has been continuous involvement of the Adult Learning Disability Team and I heard evidence both from the senior social worker and from two care workers who work for a private organisation commissioned and authorised by the Local Authority to undertake that work.
11. The Children and Families Team were involved in this family in 2003. Although the matter has not been investigated in the course of this hearing, it appears that a Schedule 1 offender was allowed to stay in the family home. 'A' was sexually abused and significantly so, as I understand it, by that Schedule 1 offender. It appears that the family fully cooperated in the investigation process, both social and criminal, and the result was the conviction and the passing of a substantial sentence of imprisonment upon the offender. No doubt because of the co-operation that had been forthcoming, the Local Authority Child and Families Team closed their file on this case in or about November of 2004. They reopened it, however, in the summer of 2005 when the senior social worker, from the Adult Learning Disabilities Team, made a referral to the Children and Families Team following complaints of injuries sustained by the mother and said to be the result of domestic violence. The Local Authority responded by beginning a core assessment of the family. It is right to say that up until the summer of 2005 both children had lived uninterruptedly with their parents in whatever family home they were in at the time. Thus far one is faced with the kind of case with which both the Adult Disability Team and, perhaps to a lesser extent, the Children and Families Team, will be all too familiar and which, as I say, the school evidence demonstrates is a commonplace experience in that part of B.
12. The case dramatically changed its complexion on the 13th September 2005. On that date an Emergency Protection Order was granted. The children were removed into foster care and they have remained in foster care ever since. The reason that the Emergency Protection Order was granted was because a child at school made a perfectly coherent and, therefore, potentially credible allegation that he had seen the father whipping the children with a belt. Not surprisingly, in the context of this case, the Local Authority moved as they did. In the course of the subsequent proceedings, in which the position was secured by interim care orders, Mrs. W came to be instructed and she provided a lengthy report.
13. The matter came for final hearing before His Honour Judge O'Malley at the end of May and beginning of June of this year. On the 22nd June of this year the learned judge delivered a judgment in which he held that the threshold criteria, required by Section 31(2) of the Children Act 1989 had been made out. He found that the whipping allegation had not been made out and further was actually unlikely ever to have happened. He made it clear that his judgment was fundamentally based in the evidence and opinions of Mrs. W. He directed that the interim care order should continue, that contact should continue at the rate of three times a week, being supervised throughout, and certain assessments were approved and ordered.
14. The parents were given permission by the Court of Appeal to appeal against the judgment of Judge O'Malley. That matter was heard by the Court of Appeal on the 25th August of this year. The Court quashed the findings of the learned judge and directed a retrial before a judge of the Division. The matter has come on really very quickly indeed after that because it became apparent to Mr. Justice Coleridge, the Family Division Liaison Judge for the Circuit, that I had a spare week of my standby which was not accounted for and I was, therefore, free and able to come to Bristol and hear this case and thus it has come on perhaps rather more quickly than anyone might have anticipated.
15. The case, as it developed before me, was inevitably a case of very different emphasis from that which had been presented to His Honour Judge O'Malley. Before me three principal points have been developed on behalf of the Local Authority.
16. The first has been to investigate an alleged history of domestic violence within this family and to invite the court, if satisfied as to such violence, to reflect upon the impact that that might have on family and children, past, present and future, and particularly in the light of the amended definition of harm in Section 31(9) of the Act.
17. Secondly, the Local Authority have laid emphasis on both the behaviour of the children and the general family dynamics in contact. That, of course, must be approached with care because the relevant date upon which the Local Authority have to satisfy the court as to the existence of the threshold criteria, in this case, is the 13th September 2005 and, of course, all contact post dates that. Nevertheless, it is often possible, from observations of contact, to draw inferences about what the position would have been before the crucial date and to act upon it. In so doing the court must, of course, be cautious to acknowledge the artificiality of supervised contact settings, the artificiality induced by an intense exposure of members of the family to each other rather than the permanent exposure experienced in the course of ordinary family life, and the court must take into account that for these particular parents supervised contact may have been a particularly artificial and difficult experience. But, that said, nevertheless it is capable of providing a source of evidence.
18. The third area to which my attention is invited is what are said to be the very significant improvements that the children have experienced, particularly at school, as a result of their being in foster care. I had fairly wide ranging evidence from educational authorities, the vast majority of which was on paper since this case had come into the list during half term which meant that a lot of people were inevitably away but, nevertheless, the Special Needs Coordinator of the school attended and gave what I regard as helpful and instructive evidence.
19. Improvements may, of course, be taken into account but they are subject to broadly similar caveats as contact because, of course, they post date the critical date but they are capable of providing information from which inferences as to earlier matters may be drawn. That said, the Court must be careful, in a case such as this, to remember that if children are removed from parents whose intellectual functioning is as described by Mrs. W of these parents, and are placed with able foster parents, it would be really very surprising indeed if some changes, particularly on the educational front, were not to be apparent.
20. What is the Local Authority's case in relation to domestic violence? It can be put, I think, like this. First of all, there are a series of documented occasions when the mother has been seen by others with injuries to her person. Secondly, on some of those occasions she has made a spontaneous complaint that those injuries have been caused by the father. It has to be recognised that, almost by definition, such matters, if they occur, occur in private and difficulties of proof will always attend them particularly, as here, in the absence of medical evidence. But although there is undoubtedly evidence of the mother being seen with injuries, which I accept, and although there is undoubtedly evidence of the mother making spontaneous complaints against the father, which I also accept, those have to be seen in the context of this case. Crucially they have to be seen in the context of the mother's reliability, or lack of it, and inconsistency as a historian. I have already adverted to the material part of Mrs. W's report.
21. When she gave evidence to His Honour Judge O'Malley she made this observation:

"I don't think we need to be relying on her….." - that's the mother - "….to be a historian because the evidence that she has been damaged has been contemporaneous with the damage and consequently the occasions when she has had a row which has ended up violently, she has asked for help. So it isn't a matter of her being a historian; it's not that in her present time experience that these things happened. She has told people that she knows who work with her and they have tried to support her."

Then she added:

"And then latterly she has forgot about that…..", which leads me to the next point. Of course in most of these occasions, where the mother has made a spontaneous complaint against the father, she has later provided some other explanation for the injury that she sustained.

22. The next matter of context is that the mother herself has a fairly volatile temperament and, in particular, the parents are incapable of calming each other down when a row gets underway and the mother is capable of head banging and that, of course, brings with it the risk of certain superficial injury.
23. The father appears once to have made an admission about hitting the mother with a camera but it is extremely difficult to track down where in the chronology that belongs to, otherwise he has denied any violence on his part and has always asserted that it was accidental or self-harming. Lastly, one has to say that the father's accounts were, however, not always particularly convincing. One might like to look at an instant which occurred on the 6th July of 2005 where the supervising care worker sees bruising to the mother's face, ear and another lump and bruise, the mother having pain to the shoulder and some swelling to the hand and wrist which the mother says were caused by the father and the father says she did them to herself. That is a very strange series of self-inflicted injuries, if self-inflicted injuries they ever were.
24. What about the Local Authority's case in relation to the children's behaviour? The current social worker in the case clearly believes that this is a classic domestic violence case and everything that has been seen fits in with the picture of domestic violence. She has herself some particularly specialised knowledge in this area, having worked in a hostel and I have no doubt as to the genuineness of the opinion that she advanced. The Court, however, must caution itself with the distinction between conduct and appearances that are consistent with a history of domestic violence, not necessarily being of itself proof of that fact and the Court bears that distinction carefully in mind.
25. The Local Authority's case on the children's behaviour is, however, a little wider than that. It is alleged that there has been a significant lack of control, there has been bad language used and uncorrected, there has been bad behaviour uncorrected and perhaps even sometimes encouraged. That has manifested itself, particularly troublingly, in an attitude of disrespect to the mother, both in terms of speech and behaviour and that those matters of speech and behaviour have not been controlled and, indeed, have sometimes even been encouraged by the father. As I say, I think I've probably adequately set out what the Local Authority's case is in relation to the children's education.
26. What about the position and views of the children themselves? Well, 'A' essentially has said that she wants to be at home. She certainly has never said that she wants to be anywhere else specifically, although she's not always completely clear about what she wants and sometimes is unable or unwilling to express a view. Nevertheless, what was interesting in Mrs. W's report was the administration of the Bene Anthony test which she has helpfully set out in diagrammatic form on page 32 of her report. That demonstrates a wide range of positive attributes to father and mother, some to 'M', although more than compensated by negatives to him, but most of the negatives being attributed to nobody. Whatever that may be interpreted to mean, it certainly indicates that 'A' regards herself as securely attached to her parents.
27. As to 'M', it is clear that he says, to anyone who will listen and whenever he is asked, that he wishes to be back at home with his parents. The Bene Anthony test in relation to him, set out in similar form on page 36 of the report, again demonstrates a secure and real attachment to his parents and a desire to assign the negative aspects of relationships principally to nobody. It may be that 'M', unlike 'A', has enough intellectual skill to realise what might have been going on and to reflect that in his answers, but I think the Court ought to be very cautious about drawing that conclusion, given the very large number of responses required of a child in this test over a comparatively short period of time.
28. What is very striking about both Bene Anthony results is the absence, both positive and negative, of any responses to the foster parents with whom they have been living for many months. That, of course, is not to be interpreted as any criticism of the foster parents, which it manifestly is not, but is, I suspect, to be interpreted as indicating that both children believe that they are simply staying there until the adult world sorts things out for them to be able to return to the family. They make some generally positive comments about the foster home in which they have stayed, apparently comfortably and well. So here we have children whose only real attachments, in an emotional sense, are with their parents.
29. It is also worth, at this point in the judgment, just pausing for a moment to see how all this has appeared in the eyes of the parents themselves. To them the reason for the removal of these children was comprehensively disposed of by His Honour Judge O'Malley and yet the children are still away. To them they are now facing a case which is significantly different from the case upon which the Local Authority thought it proper to act in the first place. Although this may be rather too complex to be grasped, actually the only way probably the Local Authority can sustain a significant part of their case is relying on the accuracy or truthfulness of the mother so as to justify the continued removal of these children from the home and any parents, in those circumstances, would be forgiven for thinking that this was all grossly unjust; something which, in fairness, the Local Authority was able to acknowledge and accept.
30. But of course, whatever the children might wish and however grotesque an injustice the parents may feel themselves to have been subjected to that is no business of the Court at this stage of these proceedings. The Court is not concerned about the children's views and wishes. The Court has not yet embarked on any consideration of their welfare. The Court has to set aside any anxieties it may have about perceived injustice to the parents and the Court has to concentrate on the task which Parliament has committed to it, namely in considering whether the threshold criteria under Section 31(2) have or have not been made out in this case.
31. Section 31(2) provides as follows: "A court may only make a care order or supervision order if it is satisfied (a) that the child concerned is suffering or is likely to suffer significant harm and (b) that the harm or likelihood of harm is attributable to the care being given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him."
32. As will become clear in this judgment, I am satisfied both that the children have suffered harm and are likely to continue to do so and that the children are almost certainly children in need within the meaning of Part III in Section 17(10) of the Act. The crucial issue is the concept of significant harm, what that means and whether it has been established in this case.
33. Before turning to that, let me remind myself of such matters of law as I need to have in mind. As I have indicated, the relevant date is the 13th September 2005 and I must bear in mind that the social worker who gave evidence came on the scene after that, contact all took place after that and the significant evidence from the school of improvement all took place after that.
34. The second matter which I ought to have in mind is what, if anything, I make of the matters that occurred before the Local Authority closed its file in earlier circumstances in November 2004? Mr. Hickmart, on behalf of the father, has invited my attention to some observations of Lord Mackay of Clashfern in Re: M (a mino)(care order - threshold conditions) [1994] 2FLR577 and, in particular, to these words:

"If after a Local Authority have initiated protective arrangements the need for these have terminated, in subsequent proceedings it would not be possible to found jurisdiction on the situation at the time of the initiation of these arrangements. It was permissible only to look back from the date of disposal to the date of initiation of protection as a result of which Local Authority arrangements had been continuously in place thereafter to the date of disposal."

Mr. Hickmart submitted that that effectively precluded the Court looking at pre November 2004 matters.

35. Perhaps I also ought to have in mind the observations of Lord Justice Wilson in the appeal in this case where, at paragraph 13, in response to that submission, he says this:

"I am not convinced that Lord Mackay's dictum is in point. In my view he was suggesting that it was only in a case in which a child had not only been taken into interim foster care prior to the threshold enquiry, but had continuously so remained until the date of it, that it was proper to backdate the enquiry to the date when he had been taken into care. So while I am satisfied that, in the light of the lack of evidence as to effect, the assault could not have contributed to a finding that in September 2005, 'G' was suffering significant harm….." - and I interpolate to say that refers to the sexual assault - "….it would go too far to say that, as a matter of law, it could not have figured in the assessment whether the children were then likely to suffer significant harm. Nevertheless, it did not figure in that assessment. There is no respondent's notice by which the Local Authority might have contended that it should have figured in it and that, in any event, it would have been hard for them to make much of it."

It seems to me that when the Court is undertaking this assessment it cannot, as a matter of law, close its mind to matters that have happened in the past and have been shown to happen in the past. What it can do is take account of the extent to which anybody else regarded those matters as potentially of significant harm in considering whether or not to take it into account itself.

36. The third matter to which the Court must have regard, in respect of the law, is the issue of proof. The classic statement of that is to be found in the speech of Lord Nichols of Birkenhead in the case of Re.H & R child sexual abuse [1996] 1FLR80. At page 95 Lord Nichols makes it clear that the Local Authority undertake the burden of proof. It is for them to establish that significant harm has occurred or is likely to occur on the basis of specific facts. On page 96 Lord Nichols goes on to describe the standard of proof in words now so familiar that they do not require full repetition in every case in which they are considered. Suffice it to say that the standard is the balance of probabilities, remembering that the more unlikely or improbable the event alleged, the more cogent will be the proof required to overcome that improbability and establish the event.
37. There are, however, two passages from the speech of Lord Nichols that I do wish specifically to incorporate in this judgment because they bear upon the issues which the Court has to determine. The first is on page 101 and runs from letter A to letter E and is as follows: "I must now put this into perspective by noting and emphasising the width of the range of facts which may be relevant when the Court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. The facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats and abnormal behaviour by a child and unsatisfactory parental responses to complaints or allegations, and facts which are minor or even trivial, if considered in isolation, when taken together may suffice to satisfy the Court of the likelihood of future harm. The Court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue. I must emphasise….." - Lord Nichols goes on - "….a further point. I have indicated that unproved allegations of maltreatment cannot form the basis for a finding by the Court that either limb of Section 31(2)(a) is established. It is of course open to a court to conclude that there is a real possibility that the child will suffer harm in the future, although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court, in appropriate circumstances, to find that, although not satisfied the child is yet suffering significant harm on the basis of such facts as are proved, there is a likelihood that he will do so in the future."
38. Then the other passage is towards the end of the speech of Lord Nichols on page 102 between letters B and C, where he says this: "As I read the Act, Parliament decided that the threshold for a care order should be that the child is suffering significant harm or there is a real possibility that he will do so. In the latter regard the threshold is comparatively low. Therein lies the protection for children and, as I read the Act, Parliament also decided that proof of the relevant facts is needed if this threshold is to be surmounted. Before the Section 1 welfare test and the welfare checklist can be applied, the threshold has to be crossed. Therein lies the protection for the parents. They are not to be at risk of having their child taken away from them and removed into the care of the Local Authority on the basis only of suspicions, whether of the judge or of the Local Authority or anyone else. The conclusion that the child is suffering or is likely to suffer harm must be based on facts and not just suspicion."
39. The fourth matter of law which I need to bear in mind is, of course, the concept of harm and significant harm as defined by Section 31(9) of the Act. What is abundantly clear from all that is that if the Local Authority case is to make any progress they must be able to prove to the requisite standard a factual basis upon which issues of significant harm can be considered.
40. The Court now needs to turn back to the three bases of the Local Authority case to see what, if anything, can be proved and I turn first to the question of domestic violence. It is apparent from the evidence that on a moderately alarming number of occasions the mother had significant physical injuries. It is clear that on some occasions, though the minority, the mother's first response was that the father had caused the injuries. On the basis of the evidence about the mother, and indeed the father, as to liability as a historian, it is clear that in all those cases where the mother's first response, and contemporaneous response, was not that the father had done it, the matter cannot be taken further in respect of those allegations. Also, in this context, I am not prepared to make specific findings about what happened before November 2004. The closing of the file makes it clear that whatever it was that happened was not then regarded as a potential for significant harm and it would, in my judgment, be quite wrong to resurrect those matters at this stage and, in any event, I strongly suspect it would be extremely difficult to be clear about what had or had not happened before November 2004.
41. When all that is cleared out of the way, what is one left with? One is actually left with three incidents. The first is on the 27th May of 2005 when the mother is seen with two black eyes and an injured arm and the mother tells the supervising carer that the father had hit her with an umbrella, whereas he said she had tripped over some clothes or something. The mother went on later to say that she had tripped over outside. The second incident relates to the 6th July, to which I have already made reference, where the mother was seen with bruising and injuries to face and ear and shoulder and right hand and wrist. The third incident is on the 31st August of 2005 where the mother makes a complaint that the father has thrown a screwdriver at her and shows a mark on her neck which the carer described as a minor graze.
42. What conclusions can one draw from all of that? I bear in mind, as I say, the obligations and standard of proof. I bear in mind the significant evidential difficulties in this case attributable to the disabilities of the parents. I bear in mind also the spontaneity of the allegations and the kind of response attracted from the father. My conclusion is that I am satisfied that violence was inflicted by the father on the mother on at least two occasions, namely the 27th May and the 6th July. The consequences of those findings is a recognition that it may have happened on other occasions and that it may recur in the future and it carries with it the implications that the children are likely to know of it, not necessarily having seen it of course, but to know of it and to be affected by that knowledge and experience.
43. I turn then to the question of the behaviour of the children, recognising the difficulties of reading matters back in from contact. I propose to take what seems to me, on the face of it, one of the more troubling incidents of contact which is found in the trial bundle on pages CC143-144, and I quote from the contact record. The contact supervisor's note runs like this: "I reminded them that there was fifteen minutes left and perhaps they should think about clearing up. The mother looked at 'A' and asked her 'Pass me the box and I will fold it all up' meaning fancy dress outfits. 'You get it 'A'. 'A' got the box, mother moved onto the floor and started folding the clothes. 'You got it 'A', you put it back for me 'A'. 'A' didn't comment. Mother was on all fours trying to get up. 'M' jumped on her back and kicked her, whilst saying 'Come on, come on.' 'A' then got on mother's back. The father got out his 'phone and took some pictures. The mother was laughing, the children got off the mother."
44. Then the matter continues with:

" 'A', 'A', do a round kick.' The children and father started laughing. 'A' kicked mother's bottom. 'M' joined in and also kicked the mother. At first the mother was laughing. 'Show me a through kick' father said whilst laughing. 'M' kicked mother again. Father said 'No, no, through kick.' 'M' and 'A' kicked mother's bottom again. Mother said 'Ow' but then laughed. 'A' said 'Like this?' and kicked her legs up at the same time. Father laughed and said 'Yes.' Father then said 'Never seen a pop belly pig on the floor before.' 'M' kicked mother a few more times. They sounded harder and harder with each one. Mother said 'Ow, 'M', father just laughed. I told the children to stop and put their coats on."

45. The contact supervisor said that she was sufficiently anxious about this to ring the social worker the following day. It seems to me the Court has two comments really to make about this. The first is the incident was, by any objective standards, thoroughly disgraceful and was the kind of thing that should never occur even within the privacy of a family setting, but the Court has to balance that against the decision of the contact supervisor not to intervene. That is not remotely a criticism of the contact supervisor who alone would have been able to have the real feel of what she needed to do and the Court simply can't ignore the fact that she allowed the incident to come to an end, which it obviously did quite quickly, and then wrote it up and reported it. It is apparent from the contact records that the mother was excluded from time to time but also there are occasions where she is obviously included and an example of that is found in the contact observed by Mrs. W which I quoted much earlier in this judgment. There is no doubt that 'M' and, to a slightly lesser extent, 'A', has been out of control from time to time in terms of behaviour, though not with any very dreadful consequences.
46. My conclusion about it is that there is a fairly clear lack of boundaries and a worrying attitude from time to time displayed by the children towards their mother which the father has been unable to check and has even appeared to encourage.
47. There are also in the evidence one or two other matters involving the father which need to be brought into account. There is evidence that on the 3rd August 2005 he called 'M' a "fucking bastard". Everyone loses their cool from time to time and its relevance only is in any kind of pattern of behaviour that can be discerned from it. The other matter which is possibly of some importance was an incident described on page CC256 by the supervising carer, and perhaps it's worth quoting her comments because I accept them as accurate. She had been dealing with the father and, when he had a complaint, she suggested that he spoke to the learning disabilities social worker and then the note continues:

"Father said 'I'm not going to fucking speak to him. I want my wife back here now.' I repeated for father to speak to the social worker. Father said 'If my wife is not back by tonight I'm going to take the kids and leave her.' I advised the father yet again to speak to S. Father said 'If you don't get S to bring my wife back, I'm going to drive my car into a brick wall with the children in it and kill us all.' I told the father that he will have to speak to the social worker. I know the social worker was going to try and call him to let him know that the mother was safe. The father said that social worker is not in his office, he tried earlier and I said 'But he is now.' The father left skidding off up the road in his car."

48. I refer to that not because I believe for a moment that there was any risk of any of those threats being carried out, but as an illustration of the impetuousness of the father which is a factor that has to come into account in this case.
49. Finally, in terms of what factual basis the Court is working with, I turn to the question of the school. It is apparent from the evidence that a number of significant improvements have been achieved over the last few months and for that I have no doubt most of the credit must belong to the foster parents. But that has to be balanced against the evidence of the special needs co-ordinator at the school in two respects. One is that this is clearly an area of serious deprivation. Of the three hundred and thirty children in the school, Mrs. Vincent told me that one hundred and twenty of them were on school action plus and liable to educational statements. She declined to pick out either of the children as being particularly conspicuous within that particular setting. Whilst it is quite clear that 'A' has significant learning difficulties and has achieved improvements of late, and that 'M' does not have learning difficulties but has under-achieved but is doing better of late, whilst those matters have to be acknowledged, they also have to be set in the context of how these children appear in that school and in the setting in which they were living. So those are the matters then that the Court has regard to in relation to the facts that have been established in the evidence.
50. What about the Court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re: KD (a minor ward) ( termination of access) [1988] 1AC806, at page 812 said this:

"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature."

There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.

51. That is not, however, to say that the State has no role, as the Children Act 1989 fully demonstrates. Nevertheless, that Act, wide ranging though the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the State intervene with compulsive powers and then only when a Court is satisfied that the significant harm criteria in Section 31(2) is made out. Such an approach is clearly consistent with Article 8 of the European Convention on Human Rights. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the State may lawfully infringe that right. In my judgment Article 8(2) and Section 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the Court recognises, as Lord Nichols pointed out in H & R that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy. It is in that context that I have sought to evaluate the factual findings I have made in this case.
52. Having carefully reflected on this, I have concluded that the Local Authority have not satisfied me that these children have suffered significant harm. Certainly they have suffered harm; certainly it is likely they will do so in the future and certainly that has been and will be attributable to the parenting they receive. Moreover, one has to accept that 'A' is a child in need and 'M' probably so. Further, I accept that the Local Authority had and have good reason to be concerned about these children and their circumstances. I am simply not satisfied that that harm and that concern is enough to open the gateway to steps which otherwise could result in the permanent separation of these parents and these children. I recognise that this case is close to the border but I recognise too that there are other such families not threatened with coercive powers, as indeed this one might never have been without the false allegation of whipping in the first place. For those reasons I propose to dismiss the Local Authorities application under Part IV.
53. Having said that, certain other matters now arise for consideration. First of all, a plan will need to be worked out, I hope in co-operation between the Local Authority and the parents, to facilitate the smooth return of these children to the family home. Secondly, I am extremely grateful to the paternal aunt who was willing to take up the care of these children should the Court consider that they should remain away from the family home. I would like to commend to everyone's consideration the possible involvement of the aunt on a respite basis in this family. Whether that is done or not is of course no business of the Court. I commend it merely as something on which everyone might like to reflect.
54. I raised the possibility in argument of the Court granting a residence order and attaching conditions to it, particularly with relation to co-operation with the school and educational authorities and I shall invite, after suitable reflection, any response to that. Likewise, the Court has in mind its powers under Section 42(2)(b) of the Family Law Act 1996 to make protective orders following its findings in this case, without the need for application by any party. I invite everyone's consideration to that. Because of the peculiar features of this case I would in fact, contrary to the general policy of the Act, be willing to accept undertakings in lieu of order, but it is right and proper that an opportunity to reflect on that, and to address me, should be afforded to the parties.
55. In those circumstances I propose to adjourn to give everyone an opportunity to digest the implications of this judgment and reflect on the matters that I have raised. It is my intention to direct that a transcript of this judgment shall be prepared at public expense, that copies shall be given to all the parties and of course, because it's a judgment given in public and anonymised, any party, including the Local Authority, may make such use of it as they wish. I would be grateful if, included in the distribution of this judgment, could be the special needs co-ordinator at the school. That's the judgment I propose to give and, unless there is anything anyone wants to raise immediately, I propose to rise for a few minutes to give everyone the chance to reflect on where we're at. Very good, thank you.